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When to hire a child care negligence lawyer

Every day, thousands of parents go to work in Australia and leave their children in care. When a child is injured at daycare, it can be traumatic for both child and parent, especially if the injury is severe. Can you sue the daycare facility? Should you?

At Gerard Malouf & Partners, we specialise in cases of personal injury, negligence and institutional child abuse. If you’re worried that your child was being either neglected to the point of injury or directly abused in their day care, you should talk to a child care negligence lawyer about seeking compensation for their trauma.

What to do if your child has suffered a daycare injury

Are you wondering how to identify a daycare injury as negligence? After all, kids run, play, jump, fall and get hurt every day, even at home under the watchful eye of parents. Your child may come home with an occasional scratch, bruise or sprain, but that doesn’t mean there is childcare negligence involved.


Negligence is defined as a failure in duty of care. In Australia, duty of care to children is taken very seriously. Negligence can be suspected if observation of the daycare shows unsafe conditions or a low adult to child ratio. 


You may also have concerns about negligence or abuse if your child is abnormally hungry and thirsty when picked up from care, has burns, suddenly experiences a personality change, has bruising in odd places— like the back or stomach — or marks going around their wrists or arms. 


If you suspect daycare negligence, your fears should be investigated. Any suspicion of child abuse must be reported to the correct authorities. If there is abuse or negligence, and your child has been physically or psychologically injured, you can file a claim on their behalf.

The duty of care required of daycare workers

Since a negligence claim hinges on the duty of care toward your children, you need to understand what would constitute a failure. Not all daycare injuries are due to improper care, and you should look for additional signs of a problem before assuming your child was hurt as a result of negligence.


The duty of care owed by daycares and workers to your child is to protect them from injury or harm that is both reasonably foreseeable and preventable by a reasonable standard of care. 


This means that your child’s daycare has a duty to provide a safe and adequately supervised environment, take reasonable safety precautions during activities like sport and help protect children from other children or from unwise but predictable childish decisions.


Red flags at a daycare centre include: 


  • Dirty kitchen and eating spaces
  • Old, rusty or broken playground equipment
  • Unsecured electrical outlets
  • Cleaning supplies left within reach of children
  • Children left outside without an adult



All of these can be warning signs of daycare negligence. If your child is injured, you may be able to use evidence of such negligence to file a claim for compensation. The daycare is ultimately liable for the injury of a child enrolled at and present in their facility or on the grounds, or under their care during an offsite trip arranged by the daycare. 


Since the daycare is responsible for your child, you would normally bring a case of negligence against the organisation, not an individual worker. However, in some cases, you may wish to bring a separate claim against an individual, such as in cases of direct abuse.


When a child’s injury is due to negligence

Under the Civil Liability Act 1936 (SA), a personal injury must cause an impairment period of at least seven days to qualify for compensation. If your child bounces back to a full recovery with no lasting effects within 7 days, you probably don’t have grounds to lodge a claim on their behalf.   


If you do meet the requirements to file a claim, there are two distinct causes of action. First, you can file a claim for negligence against the child care provider. You’ll have to show there has been a failure of care on behalf of the daycare. 


The easiest way to prove negligence is to show your child’s injury was caused or contributed to by a daycare centre’s failure to meet accredited standards. Everything from the equipment present in a facility to the ratio of each daycare worker per number of different-aged children is regulated. 


The second cause is a breach of contract. When you enrol your child in care, the provider agrees to adequately care for your child. If they have not provided that care, you may be able to sue for breach of contract.   


If there is reason to launch a daycare negligence investigation, you should also see if there are any witnesses who can speak to negligent supervision or unsafe environment. Take photographs of anything untoward and create a file for our law firm to review.

Making a claim against a daycare centre

Raising a complaint with a daycare centre can be an uncomfortable task. If the child care centre doesn’t address your complaint in a timely manner, you may raise a complaint directly with your state’s Department of Education and Training. 


The Department gathers information, assesses the situation and takes action if necessary, which can include increased monitoring, licence restrictions or even prosecution. You can provide the department with all of the information you have when you raise your complaint.


You can file a claim for compensation if indicated for your child, apart from any action taken by the department. If you have a claim to make, your child care negligence attorney can be the one handling the bulk of the work, so you can focus on your child and help them recover.


If your child’s injuries are serious and permanent, and it can be proven that the centre failed in its duty of care, we can help you win compensation, but only if you reach out to us. The time to hire a personal injury lawyer is early in the claims process, so you can make sure every effort is made to reach a successful settlement. 


Has your child been injured while at daycare? We are one of the largest compensation claims specialists in Australia, winning over $4 billion for our clients. Please contact Gerard Malouf & Partners today for no-obligation legal advice about your claim.

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About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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